Post-Traumatic Stress Disorder in Criminal Defense

Post-traumatic Stress Disorder is a condition that occurs in people who have experienced a frightening or violent event, i.e., trauma. The condition’s symptoms include nightmares, avoidance of the situations or people that remind the individual of the incident or series of incidents, flashbacks to the incident, trouble sleeping, feelings of being on edge, and they usually continue for over a month, and can normally be traced to a specific indecent or series of incidents. Some people are familiar with this condition through their readings or experience with veterans who have faced combat or hostile fire, or incidents like the USS Cole bombing. PTSD can manifest within a few months of the incident, or sometimes even months or years later.

However, veterans are not the only ones who experience trauma. Many of us have had veterans as clients, and I frankly started learning about this disorder because of my attempts to assist veterans in criminal court. However, if one thinks about it, many of our clients have been exposed to trauma. People who were physically abused as children, people who were assaulted in prison, women or men who were sexually assaulted, young people who were part of gangs and the violence in their neighborhoods, people who have lost family to suicide, or been in a deadly fire, or were injured in a tragic car accident, all can experience PTSD. Now, before you get skeptical, think about these questions as they relate to our clients, and see if it is likely our clients could answer “Yes” to any of these questions, regardless of why.

Do you have nightmares?

Do you feel anxious? [cannot sit still, worries, less than calm]

Do certain sounds or smells make you feel anxious?

Are you uncomfortable in crowds?

Are you frightened by sudden loud noises?

Are you uncomfortable if you cannot see the entire room?

Do you ever feel uneasy or threatened? [or, do you have sudden angry outbursts for no apparent reason?]

Do you have trouble sleeping?

Do you avoid noisy areas?

Do you have negative views of yourself, or feelings of guilt or blame?

These questions are not all encompassing, nor are they a surefire way to detect it. If one takes the risk factors [abusive childhood, for instance, anyone who has been involved in a CPS case, or prior military service in a hazardous area or direct combat, or prior prison time, or prior losses of loved ones in a violent way, for example] and then observes the client [are they hyper-vigilant, keep the their backs to the wall, head on a swivel, or are they complaining of sleeplessness, irritability, bad dreams, taking anti-anxiety medications, do they appear to look for threats or complain about how some guard reminds them of their dad, “that bastard”, etc.], then this is worth following up for several reasons.

First, the circumstances that produce the PTSD are often quite mitigating to juries, judges, and prosecutors. It will not always help, but if people begin to see your client as the kid who was abused and placed in a foster home instead of the armored car robber, then this can only help. Second, the PTSD itself is often the root of the actions that got your client here in court in the first place. Whether it is being caught with controlled substances that they use to anesthetize, or the drinking that led to the DWI, or a flashback that caused an over aggressive reaction that led to an assault charge, a diagnosis of PTSD could mean you have both an explanation for the illegal act and a way forward, i.e. treatment. This can only help your client. Last, it can provide, in some instances, a defense, particularly if one can put the fact-finder back in the incident that caused the PTSD and see how it was perceived by the client. In limited instances, it may even provide a defense against intent if one can prove a flashback occurred or that the circumstances were a misconception.

So, we know to at least look for the presence of this disorder in our all-too often traumatized clients. Next, since we are lawyers, we need to prove this so we can use it. If our client is a veteran, often that simply means obtaining his or her medical records if they already have such a diagnosis. If they are vets but do not have the diagnosis yet, then see if one can arrange for a VA examination and diagnosis. First though, one may need to obtain the records that support the diagnosis, such as combat awards (a Purple Heart, a Combat Action Badge/Ribbon, commendations with a “V” device for valor under enemy fire, awards for heroism [such as a Bronze Star], or a unit citation) or the discharge papers, called a “DD-214”, which will list the job, deployments, and action history of the service member. If these records are not available, a request can be sent to the VA to obtain a copy. We can also look to the unit history maintained in the archives of the separate services, which will list combat or hazardous actions by the person’s unit. These can be obtained by an e-archives release form downloaded off the web.

For our civilian folks, the records process is trickier. Prison and jail discipline or medical records are often a surprising gold mine, even if it looks as if your guy was written up for the fight. Attacks on your client are often documented in either medical or disciplinary records. The reader may poo poo this, but how many of your friends would respond with calm equanimity to an attempted sexual assault or shanking? For older cases of sexual or physical abuse to a client during their childhood, one needs a subpoena typically to the Children’s Protective Service agency in the county that handled them, and a release for any medical or counseling records. Juvenile records are often also a good source for this. We may also want affidavits from family [this works for the vets above as well] members as to the client’s waking up at night screaming, increased drinking, increased drug use, or sudden bursts of temper since returning from prison, the service, the fire, or since leaving foster care.

Which brings up a point – PEOPLE DO NOT LIKE TALKING ABOUT TRAUMATIC EVENTS BECAUSE THEY WERE TRAUMATIC. One needs to get at least some trust, some facts, or some family help to prove this disorder up, because no one likes sharing difficult times from their past with strangers. Would you? Keep this in mind and treat the issue with some dignity. Do not expect immediate help from the client as to the horrible things they had to endure. This does not happen in a holdover cell meeting; it happens over time and investigative effort.

So, look for the PTSD that many of our clients have, find the proof, and use it to lessen their consequence. Good luck!

Originally Aired: May 03, 2018Discussion: Caller discusses problems at DA intake and the decisions to accept cases that they can't or shouldn't prosecute. The DAO needs to properly use their resources. The low level marijuana cases aren't being prosecuted by the DAO and caller says DWLI and trespass cases should be treated the same way.

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